Justin James Zobel v. State of Iowa ( 2020 )

IN THE COURT OF APPEALS OF IOWA
No. 19-1516
Filed August 5, 2020
JUSTIN JAMES ZOBEL,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Cerro Gordo County, DeDra L.
Schroeder, Judge.
Justin Zobel appeals the denial of his application for postconviction relief.
AFFIRMED.
Richard Hollis, Des Moines, for appellant.
Thomas J. Miller, Attorney General, and Bridget A. Chambers, Assistant
Attorney General, for appellee State.
Considered by Vaitheswaran, P.J., and Mullins and Ahlers, JJ.
2
VAITHESWARAN, Presiding Judge.
Justin Zobel was convicted of several crimes. The court of appeals affirmed
his judgment and sentences. See State v. Zobel, No. 16-0892, 2017 WL 3077922,
at *5 (Iowa Ct. App. July 19, 2017).
Zobel filed a postconviction-relief application in 2017, alleging in part that
“at least one member of the jury panel lied when asked about any sort of
relationship or association with the victim.” He did not attach an affidavit to support
the allegation. See Iowa Code § 822.4 (2017) (“Affidavits . . . supporting its
allegations shall be attached to the application or the application shall recite why
they are not attached.”).
The district court appointed counsel for Zobel and scheduled the matter for
hearing a year later. Shortly before the hearing date, counsel moved for a
continuance, citing an inability to communicate with Zobel for several months. The
district court granted the motion. The court later granted a second motion to
continue in addition to a motion to remove the case from the list of cases subject
to dismissal for lack of prosecution. See Iowa R. Civ. P. 1.944.
On the rescheduled hearing date in 2019, Zobel’s attorneys filed a brief re-
asserting that Zobel “should be awarded a new trial due to juror misconduct and
juror bias as [a] juror . . . had a relationship or association with the purported
victim.” They also filed a motion for additional time to obtain an affidavit from Zobel
to “explain his knowledge of the relationship” between that juror and “the purported
victim.” They claimed they had not been able to communicate with Zobel for
approximately one week.
3
The district court denied the motion and the postconviction-relief
application, reasoning as follows:
The applicant in this case has failed to present any
evidence regarding the issue of juror misconduct or
juror bias. Mere assertions in the application and
briefing are insufficient.
Counsel for the applicant requested additional
time to present evidence by way of affidavit of the
applicant. The applicant has failed to maintain contact
with his counsel. . . . The request for additional time
was denied.
On appeal, Zobel argues the district court’s denial of his motion for
additional time violated his due process rights under the United States and Iowa
Constitutions. He failed to preserve error on this issue. See Meier v. Senecaut,
641 N.W.2d 532, 537 (Iowa 2002) (citation omitted) (“It is a fundamental doctrine
of appellate review that issues must ordinarily be both raised and decided by the
district court before we will decide them on appeal.”).
In the alternative, Zobel argues “postconviction counsel were ineffective for
failing to present [his] motion for additional time to obtain affidavit from [him] as a
request implicating [his] rights to due process of law.” To prevail, he must establish
deficient performance and prejudice. See Strickland v. Washington, 466 U.S. 668,
687 (1984). We may resolve the claim on either prong. Nguyen v. State, 878
N.W.2d 744, 754 (Iowa 2016) (“Since we conclude that counsel did not fail to
perform an essential duty, we need not address the prejudice prong of the
ineffective-assistance-of-counsel analysis.”). Zobel does not expound
upon the deficient-performance prong other than to say that his attorneys breached
their duties of competence and diligence. We are unpersuaded.
4
Zobel had two years to obtain an affidavit to support his allegation of juror
misconduct. He was appointed counsel to assist him in this endeavor, but he failed
to communicate with them, prompting them to file two continuance motions and a
motion for reinstatement of the case. Although he apparently contacted his
attorneys a week before the rescheduled hearing date, the record does not
disclose the nature of the communication or whether counsel had an opportunity
to request an affidavit at that juncture. Even if they did, Zobel does not explain
how their failure to request and obtain an affidavit at that late date amounted to
deficient performance, given his dilatory conduct up to that point. See State v.
Clark, 814 N.W.2d 551, 562 (Iowa 2012) (“Clark’s claim that the district court’s
denial of his motion for continuance and additional depositions violated his due
process rights and right to present a complete defense must fail.”); Mitchell v.
State, No. 09-0610, 2013 WL 750121, at *4 (Iowa Ct. App. Feb. 27, 2013)
(“Continuances are only appropriate when the reason for more time is not the result
of a party’s own fault or negligence.” (citing Iowa R. Civ. Pro. 1.911(1))).
We conclude counsel did not breach an essential duty in failing to raise due
process concerns in the motion for additional time. Because Zobel had ample
opportunity to prove his claim and failed to present evidence after multiple
continuances, we further conclude the district court appropriately denied his
postconviction-relief application on the merits.
AFFIRMED.